New York City cannot ban sales of large sodas: judge

Some public health experts had praised Bloomberg's effort, while business owners had derisively referred to his "nanny state". Public sentiment had appeared divided.
Photo: AFP

New York City's plan to ban large sugary drinks from restaurants, movie theatres and other establishments was invalidated by a judge on Monday, the day before the new law was to take effect.

State Supreme Court Justice Milton Tingling in Manhattan called the regulation "arbitrary and capricious" and declared it invalid after the American Beverage Association and other business groups had sued the city challenging the ban.

The decision was a blow to Mayor Michael Bloomberg, who had touted the ban as a way to address what he has termed an obesity "epidemic". Beverage manufacturers and business groups had called the law an illegal overreach that would infringe upon consumers' personal liberty.

"We plan to appeal the decision as soon as possible, and we are confident the Board of Health's decision will ultimately be upheld," Michael Cardozo, the city's chief lawyer, said in a statement.

The ban had prohibited the city's food-service businesses from selling sugary drinks larger than 16 ounces (47 cl), though city officials had said they would not begin imposing $US200 fines on offending businesses until June.

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Businesses such as Dunkin Donuts, which in recent days had been handing out information cards to its customers to explain the ban's impact on its menu, had been preparing to comply with the law.

Bloomberg has made improving the health of New Yorkers part of his legacy. The soda ban had followed similar crackdowns on fat, sugar and salt and a smoking ban that has been replicated around the world.

In anticipation of the soda ban, Bloomberg on Monday released new data tying sugary drinks to the city's fattest neighbourhoods. The new city study showed nine of the neighbourhoods with the 10 highest obesity rates were also the highest in sugary drink consumption. At the other end, the three least obese neighbourhoods were also the lowest in sugary drink consumption.

NANNY STATE SCEPTICS

Some public health experts had praised Bloomberg's effort, while business owners had derisively referred to his "nanny state". Public sentiment had appeared divided, with a Marist University poll last summer showing 53 percent of New York City adults against the ban and 42 percent in favour.

"I think right now he's starting to think about his legacy, and this was certainly one of the items he was going to point to," said Lee Miringoff, the Marist poll director. "So I'm sure this comes as a big disappointment."

Companies such as Coca-Cola, PepsiCo and McDonald's had argued that the ban was inconsistent in its application, since it would still permit grocery and convenience stores to sell the drinks in any size.

The lawsuit also claimed the city's mayor-controlled health board, which approved the ban last fall, had improperly sidestepped the city council's legislative authority.

In his ruling, Tingling said the health board's power to enact regulations was intended to combat acute epidemics, rather than "chronic" sickness. He also zeroed in on the ban's loopholes, noting it would only have applied to businesses that are under the purview of the health department, like restaurants.

"It is arbitrary and capricious because it applies to some but not all food establishments in the city, it excludes other beverages that have significantly higher concentrations of sugar sweeteners and/or calories on suspect grounds, and the loopholes inherent in the rule ... serve to gut the purpose of the rule," he wrote.